New Anti-Harassment Laws Are Coming to California

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California employers can expect to see more changes to the state's sexual-harassment-prevention laws during the current legislative year, but exactly how those laws will change remains to be seen.

Every year there's a trend regarding the type of bills state lawmakers introduce and consider. The dominant themes for the 2018 legislative session continue to be sexual harassment and the #MeToo movement, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego and the director of government affairs for the California State Council of SHRM (CalSHRM).

From Hollywood to Silicon Valley, employers in the state have been revisiting their harassment-prevention programs. "In the last year, the technology industry joined the growing list of industries making headlines for allegations of sexual harassment and gender inequality," said Elizabeth Stonhaus, a labor and employment attorney at Kaufman Dolowich & Voluck in San Francisco. "Since Northern California is home to a significant number of technology companies, we anticipate many technology employers in the area will be closely following new legislation related to the #MeToo movement."

Out-of-state employers should also keep up with what's happening in California, Kalt said during a session at CalSHRM's 2018 California State Legislative & HR Conference in Sacramento. "What happens in Sacramento doesn't always stay in Sacramento."

Here are some key anti-harassment bills employers should be watching:

SB 1038 would make employees personally liable for retaliating against workers who complain about harassment and discrimination. This bill would probably have the most impact on HR professionals, Kalt said. It is well-intentioned, but as it is written now, could apply very broadly to any employees who make personnel decisions. CalSHRM is committed to preventing unlawful retaliation and working with employers and legislatures to prevent it, but it opposes S.B. 1038 because the bill could chill effective workplace management.

SB 1300 is an omnibus bill that would make numerous changes to the California Fair Employment and Housing Act (FEHA). It would require employers with five or more employees (rather than 50 or more) to provide sexual harassment training to all employees (not just supervisors). Additionally, it would prohibit employers from requiring workers to sign a release of FEHA claims in exchange for a raise or a bonus or as a condition of employment, and it would make employers potentially liable for any type of harassment (not just sexual harassment) by nonemployees. The bill would also make it possible for workers to sue employers for conduct that hasn't yet reached the "severe or pervasive" harassment standard in certain situations. Furthermore, a prevailing defendant in a lawsuit would not awarded legal fees unless the court finds that the lawsuit is frivolous, unreasonable or totally without foundation.

SB 1343 would require employers with five or more employees to provide at least two hours of sexual harassment training to all employees by 2020 and once every two years thereafter. It would also require the Department of Fair Employment and Housing (DFEH) to produce and publish a two-hour video training course for employers. "This bill appears largely unopposed, and it unanimously passed key committee votes," Kalt said.

AB 1867 would require employers with 50 or more employees to retain records of sexual-harassment complaints for 10 years, and would allow the DFEH to seek an order requiring the employer to comply.

AB 3081 would amend the California Labor Code to provide protections for victims of sexual harassment. The labor code already precludes discrimination or retaliation against victims of domestic violence, sexual assault, and stalking. This bill would also prohibit an employer from firing or otherwise discriminating or retaliating against an employee because of his or her status as a victim of sexual harassment.

These are just some of the bills state lawmakers are considering. "Legislators proposed nearly two dozen workplace bills concerning sexual harassment this year," Stonhaus said.

The training-related bills aim to expand which employers must offer sexual-harassment training and to whom it must be provided. Other bills seek to more effectively unmask workplace sexual harassment and expand employer liability.

California employers should be prepared. "It is not clear which sexual harassment bills will pass, but it is clear that some will," Kalt noted.

Walter Stella, an attorney with Miller Law Group in San Francisco, recommends that employer policies:

Prohibit all unwelcome conduct—not just unlawful conduct.

Reinforce a culture of respect and tolerance.

Provide examples of prohibited behavior and harassment.

Prohibit abusive conduct and bullying.

Address the effects of alcohol.

Businesses should include the policy in their employee handbook and should distribute it at least once a year, he said during a session at the CalSHRM conference.

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Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.